anywhere within the limits of the land. , race or color, and without illegal interferWhether this was or was not the wiser way | ence, or by violent means. to deal with the great problem is not a mat

The indictment was based primarily upon ter for the courts to consider. It is for us $ 5508 of the Revised Statutes (U. S. Comp. to accept the decision, which declined to Stat. 1901, p. 3712), which provides: "§ 5508. constitute them wards of the nation or If two or more persons conspire to injure, leave them in a condition of alienage where oppress, threaten, or intimidate any citizen they would be subject to the jurisdiction of in the free exercise or enjoyment of any Congress, but gave them citizenship, doubt. right or privilege secured to him by the Con. less believing that thereby in the long run stitution or laws of the United States, or their best interests would be subserved, because of his having so exercised the same; they taking their chances with other citi. or if two or more persons go in disguise on zens in the states where they should make the highway, or on the premises of another, their homes.

with intent to prevent or hinder his free For these reasons we think that the exercise or enjoyment of any right or privi. United States court had no jurisdiction of lege so secured, they shall be fined not more the wrong charged in the indictment. The than five thousand dollars, and imprisoned judgments are reversed, and the case re- not more than ten years, and shall, moremanded with instructions to sustain the over, be thereafter ineligible to any office demurrer to the indictment.

or place of honor, profit, or trust created

by the Constitution or laws of the United Mr. Justice Brown concurs in the judg. States.” ments.

Other sections of the statutes relating to

civil rights, and referred to in the discusMr. Justice Harlan (with whom concurs sion at the bar, although not, perhaps, vital Mr. Justice Day), dissenting:

to the decision of the present case, are as The plaintiffs in error were indicted with follows: "§ 1977 (U. S. Comp. Stat. 1901, p. eleven others in the district court of the 1259). All persons within the jurisdiction United States, eastern district of Arkansas, of the United States shall have the same for the crime of having knowingly, wilfully, right in every state and territory to make and unlawfully conspired to oppress, and enforce contracts, to sue, and be parties, threaten, and intimidate Berry Winn, Dave give evidence, and to the full and equal Hinton, Percy Legg, Joe Mardis, Joe McGill, benefit of all laws and proceedings for the Dan Shelton, Jim Hall, and George Shelton, security of persons and property as is en. persons of African descent and citizens of joyed by white citizens, and shall be subthe United States and of Arkansas, in the ject to like punishment, pains, penalties, free exercise and enjoyment of the right taxes, licenses, and exactions of every kind, and privilege--alleged to be secured to them and to no other. $ 1978. All citizens of the respectively by the Constitution and laws of United States shall have the same right, in the United States-of disposing of their every state and territory, as is enjoyed by

— labor and services by contract and of per- white citizens thereof, to inherit, purchase, forming the terms of such contract without lease, sell, hold, and convey real and perdiscrimination against them because of their sonal property. $ 1979. Every person who,

The indictment charged that “the said were, on their part, to perform labor and Berry Winn, Dave Hinton, Percy Legg, Joe, services at said manufactory, and were to Mardis, Joe McGill, Dan Shelton, Jim Hall, receive, on the other hand, for their labor and George Shelton, being then and there and services, compensation, the same being persons of African descent, and citizens of a right and privilege conferred upon them the United States and of the state of by the 13th Amendment to the Constitution Arkansas, had then and there made and en- of the United States and the laws passed in tered into contracts and agreements with pursuance thereof, and being a right similar James A. Davis and James S. Hodges, per- to that enjoyed in said state by the white sons then and there doing business under the citizens thereof; and while the said Berry name of Davis & Hodges, as copartners car-Winn, Dave Hinton, Percy Legg, Joe Mardis, rying on the business of manufacturers of Joe McGill, Dan Shelton, Jim Hall, and lumber at White Hall, in said county, the George Shelton were in the enjoyment of said contracts being for the employment by said right and privilege the said defendants said firm of the said Berry Winn, Dave Hin- did knowingly, wilfully, and unlawfully ton, Percy Legg, Joe Mardis, Joe McGill, conspire as aforesaid to injure, oppress, Dan Shelton, Jim Hall, and George Shelton, threaten, and intimidate them in the free as laborers and workmen in and about their exercise and enjoyment of said right and said manufacturing establishment, by which privilege, and because of their having so contracts the said Berry Winn, Dave Hin-exercised the same, and because they were ton, Percy Legg, Joe Mardis, Joe McGill, citizens of African descent, enjoying said Dan Shelton, Jim Hall, and George Shelton | right, by then and there notifying the said

1

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under color of any statute, ordinance, regu- for compensation, service and labor in and lation, custom, or usage of any state or ter- about the manufacturing business in that ritory, subjects, or causes to be subjected, state of a private individual; any citizen of the United States or other That those persons, in execution of their person within the jurisdiction thereof to the contract, entered upon and were actually deprivation of any rights, privileges, or im- engaged in performing the work they agreed munities secured by the Constitution and to do, when the defendants—the present laws, shall be liable to the party injured in plaintiffs in error--knowingly and wilfully an action at law, suit in equity, or other conspired to injure, oppress, threaten, and proper proceeding for redress." "$ 5510 (U. intimidate such laborers, solely because of S. Comp. Stat. 1901, p. 3713). Every person their having made that contract, and bewho, under color of any law, statute, ordi- cause of their race and color, in the free exnance, regulation, or custom, subjects, or ercise of their right to dispose of their labor, causes to be subjected, any inhabitant of and prevent them from carrying out their any state or territory to the deprivation of contract to render such service and labor; any rights, privileges, or immunities, secured That, in the prosecution of such conspiror protected by the Constitution and laws acy, the defendants, by violent means, comof the United States, or to different punish- pelled those laborers, simply, “because they ments, pains, or penalties, on account of were colored men and citizens of African such inhabitant being an alien, or by reason descent,” to quit their work and abandon of his color or race, than are prescribed for the place at which they were performing the punishment of citizens, shall be pun labor in execution of their contract; and ished by a fine of not more than one thou- That, in consequence of those acts of the sand dollars, or by imprisonment not more defendant conspirators, the laborers referred than one year, or by both."

to were hindered and prevented, solely beA demurrer to the indictment was over- cause of their race and color, from enjoying ruled, and the defendants having pleaded the right by contract to dispose of their lanot guilty, they were tried before a jury, bor upon such terms and to such persons as and some of them—the present plaintiffs in to them seemed best. error-were convicted of the crime charged, Was the right or privilege of these labor. were each fined $100, and ordered to be im- ers thus to dispose of their labor secured to prisoned for one year and a day. A motion them “by the Constitution or laws of the for new trial having been denied, they have United States ?" If so, then this case is brought the case to this court.

within the very letter of $ 5508 of the ReIn our consideration of the questions now vised Statutes, and the judgment should be raised it must be taken, upon this record, affirmed if that section be not unconstituas conclusively established by the verdict tional. and judgment,

But I need not stop to discuss the constiThat certain persons—the said Berry tutionality of $ 5508. It is no longer open

| Winn and others above named with him—to question, in this court, that Congress citizens of the United States, and of Arkan- may, by appropriate legislation, protect any sas, and of African descent, entered into a right or privilege arising from, created or contract whereby they agreed to perform, secured by, or dependent upon, the ConstituBerry Winn, Dave Hinton, Percy Legg, Joe threats and otherwise, to remove from said Mardis, Joe McGill, Dan Shelton, Jim Hall, place of business, to stop said work, and to and George Shelton that they must abandon cease the enjoyment of said right and privisaid contracts and their said work at said lege, and by then and there wilfully, delibmill, and cease to perform any further labor crately, and unlawfully compelling said thereat, or receive any further compensa - Berry Winn, Dave Hinton, Percy Legg, Joe tion for said labor, and by threatening, in Mardis, Joe McGill, Dan Shelton, Jim Hall, case they did not so abandon said work, to and George Shelton to quit said work and injure them, and by thereafter then and abandon said place and cease the free enthere wilfully and unlawfully marching and joyment of all advantages under said conmoving in a body to and against the places tracts, the same being so done by said de. of business of the said firm while the said fendants and each of them for the purpose Berry Winn, Dave Hinton, Percy Legg, Joe of driving the said Berry Winn, Dave HinMardis, Joe McGill, Dan Shelton, Jim Hall, ton, Percy Legg, Joe Mardis, Joe McGill, and George Shelton were engaged thereat, Dan Shelton, Jim Hall, and George Shelton and while they were in the performance of from said place of business and from their said contracts thereon, the said defendants labor because they were colored men and being then and there armed with deadly citizens of African descent, contrary to the weapons, threatening and intimidating the form of the statute in such case made and said' workmen there employed, with the provided, and against the peace and dignity purpose of compelling them, by violence and of the United States."

—

tion or laws of the United States. That is fender shall suffer such punishment as is what that section does. It purports to do attached to such felony or misdemeanor by nothing more. In Ex parte Yarbrough, 110 the laws of the state in which the offense is U. S. 651, 28 L. ed. 274, 4 Sup. Ct. Rep. 152, committed. No question has been madeit was distinctly adjudged that $ 5508 was a indeed, none could successfully be madevalid exercise of power by Congress. In Lo- as to the constitutionality of these statgan v. United States, 144 U. S. 263, 286, 293, utory provisions. Ex parte Yarbrough, su36 L. ed. 429, 437, 439, 12 Sup. Ct. Rep. 617, pra; United States v. Waddell, 112 U. S. 76, 623, 626, this court stated that the validity 28 L. ed. 673, 5 Sup. Ct. Rep. 35. Referring of § 5508 had been sustained in the Yar- to those provisions and to the clause of the brough Case, and, speaking by Mr. Justice Constitution giving Congress authority to Gray, said: "In United States v. Reese, 92 pass all laws necessary and proper for carU. S. 214, 217, 23 L. ed. 563, 564, decided at rying into execution the powers specifically October term, 1875, this court, speaking by granted to it, and all other powers vested in Chief Justice Waite, said: 'Rights and im- the government of the United States, munities created by or dependent upon the

this court has said: 'In the exercise of Constitution of the United States can be this general power of legislation, Congress protected by Congress. The form and the may use any means appearing to it most manner of the protection may be such as eligible and appropriate, which are adapted Congress, in the legitimate exercise of its to the end to be accomplished, and are conlegislative discretion, shall provide. These sistent with the letter and the spirit of the may be varied to meet the necessities of the Constitution. Logan v. United States, 144 particular right to be protected.'” After U. S. 263, 283, 36 L. ed. 429, 435, 12 Sup. Ct.

” referring to prior adjudications the court in Rep. 617, 622.” the Logan Case also unanimously declared:

In view of these decisions it is unneces. “The whole scope and effect of this series sary to examine the grounds upon which of decisions is that, while certain fundamen- the constitutionality of $ 5508 rests; and I tal rights, recognized and declared, but not may assume that the power of the national granted or created, in some of the amend government, by appropriate legislation, to ments to the Constitution, are thereby guar- protect a right created by, derived from, or anteed only against violation or abridgment dependent in any degree upon, the Consti. by the United States or by the states as tution of the United States, cannot be disthe case may be, and cannot therefore be puted. affirmatively enforced by Congress against I come now to the main question,unlawful acts of individuals, yet that every whether a conspiracy or combination to right created by, arising under, or depend- forcibly prevent citizens of African descent, ent upon, the Constitution of the United solely because of their race and color, from States, may be protected and enforced by disposing of their labor by contract upon Congress, by such means and in such man- such terms as they deem proper, and from ner as Congress, in the exercise of the cor-carrying out such contract, infringes or viorelative duty of protection, or of the legis-lates a right or privilege created by, derived lative powers conferred upon it by the Con- from, or dependent upon, the Constitution of stitution, may, in its discretion, deem most the United States. eligible and best adapted to attain the ob

Before the 13th Amendment was adopted ject.”

the existence of freedom or slavery within In Motes v. United States, 178 U. S. 458, 44 L. ed. 1150, 20 Sup. Ct. Rep. 993, the lan- tution and laws of such state. However

. 44 L. ed. 1150, 20 Sup. Ct. Rep. 993, the lan. any state depended wholly upon the Constiguage of the court was:

“We have seen abhorrent to many was the thought that that by $ 5508 of the Revised Statutes it is human beings of African descent were held made an offense against the United States

as slaves and chattels, no remedy for that for two or more persons to conspire to in- state of things as it existed in some of the jure, oppress, threaten, or intimidate any states could be given by the United States citizen in the free exercise or enjoyment of in virtue of any power it possessed prior any right or privilege secured to him by the to the adoption of the 13th Amendment. Constitution or laws of the United States,- That condition, however, underwent a rad- . the punishment prescribed being a fine of ical change when that Amendment became not more than $5,000, imprisonment not a part of the supreme law of the land, and, more than ten years, and ineligibility to any as such, binding upon all the states and all office or place of honor, profit, or trust cre- the people, as well as upon every branch of ated by the Constitution or laws of the government, Federal and state. By the United States. And by $ 5509 (U. S. Comp. Amendment it was ordained that “neither Stat. 1901, p. 3712), it is provided that if, in slavery nor involuntary servitude, except as committing the above offense, any other fel. a punishment for crime whereof the party ony or misdemeanor be committed, the of. I shall have been duly convicted, shall exist

within the United States or any place sub-, deprive any person of life, liberty, or propject to their jurisdiction;” and “Congress erty without due process of law. To deshall have power to enforce this article by prive any person of a privilege inhering in appropriate legislation.” Although in words the freedom ordained and established by the and form prohibitive, yet, in law, by its own 13th Amendment is to deprive him of a force, that Amendment destroyed slavery privilege inhering in the liberty recognized and all its incidents and badges, and estab- by the 14th Amendment. It is true that lished freedom. It also conferred upon every the present case is not one of the deprivaperson within the jurisdiction of the United tion, by the Constitution or laws of the States (except those legally imprisoned for state, of the privilege of disposing of one's crime) the right, without discrimination labor as he deems proper. But it is one of against them on account of their race, to a combination and conspiracy by individuals enjoy all the privileges that inhere in free-acting in hostility to rights conferred by dom. It went further, however, and by its the Amendment that ordained and estab2d section, invested Congress with power, by lished freedom and conferred upon every appropriate legislation, to enforce its pro- person within the jurisdiction of the United visions. To that end, by direct, primary States (not held lawfully in custody for legislation, Congress may not only prevent crime) the privileges that are fundamental the re-establishing of the institution of in a state of freedom, and which were vioslavery, pure and simple, but may make it lently taken from the laborers in question impossible that any of its incidents or solely because of their race and color. badges should exist or be enforced in any Let us see whether these principles do not state or territory of the United States. It find abundant support in adjudged cases. therefore became competent for Congress, One of the earliest cases arising under under the 13th Amendment, to make the the 13th Amendment was that of United establishing of slavery, as well as all at- States v. Cruikshank, 1 Woods, 308, 318, 320, tempts, whether in the form of a conspiracy Fed. Cas. No. 14,897. It became necessary or otherwise, to subject anyone to the in that case for Mr. Justice Bradley, holdbadges or

or incidents of slavery, offenses ing the circuit court, to consider the scope against the United States, punishable by and effect of the 13th Amendment and the fine or imprisonment or both. And legisla- extent of the power of Congress to enforce tion of that character would certainly be its provisions. Referring to the 13th appropriate for the protection of whatever Amendment, that eminent jurist said that rights were given or created by the Amend- “this is not merely a prohibition against the ment. So, legislation making it an offense passage or enforcement of any law inflicting against the United States to conspire to in- or establishing slavery or involuntary servijure or intimidate a citizen in the free exer- tude, but it is a positive declaration that cise of any right secured by the Constitu- slavery shall not exist.

So, untion is broad enough to embrace a conspir-doubtedly, by the 13th Amendment,'Conacy of the kind charged in the present in- gress has power to legislate for the entire dictment. “A right or immunity, whether eradication of slavery in the United States. created by the Constitution or only guar- This Amendment had an affirmative operaanteed by it, may be protected by Congress.” tion the moment it was adopted. It enfranThis court so adjudged in Strauder v. Westchised four millions of slaves, if, indeed, Virginia, 100 U. S. 303, 310, 25 L. ed. 664, they had not previously been enfranchised 666, as it had previously adjudged in Prigg by the operation of the Civil War. Congress, v. Pennsylvania, 16 Pet. 539, 10 L. ed. 1060, therefore, acquired the power not only to and in United States v. Reese, 92 U. S. 214, legislate for the eradication of slavery, but 23 L. ed. 563. The colored laborers against the power to give full effect to this bestowwhom the conspiracy in question was di- ment of liberty on these millions of people. rected owe their freedom as well as their All this it essayed to do by the civil rights exemption from the incidents and badges of bill passed April 9, 1866 (14 Stat. at L. 27, slavery alone to the Constitution of the chap. 31), by which it was declared that all United States. Yet it is said that their persons born in the United States, and not right to enjoy freedom and to be protected subject to a foreign power (except Indians, against the badges and incidents of slavery not taxed), should be citizens of the United is not secured by the Constitution or laws States; and that such citizens, of every of the United States.

race and color, without any regard to any It may be also observed that the freedom previous condition of slavery or involuntary created and established by the 13th Amend servitude, should have the same right, in ment was further protected against assault every state and territory, to make and enwhen the 14th Amendment became a part force contracts, to sue, be parties, and give of the supreme law of the land; for that evidence to inherit, purchase, lease, sell, hold, Amendment provided that no state shall' and convey real and personal property, and to full and equal benefit of all laws and pro- Cases, 109 U. S. 3, 20, 22, 27 L. ed. 835, 842, ceedings for the security of persons and 843, 3 Sup. Ct. Rep. 18, 28, 29, in which the property, as is enjoyed by white citizens, court passed upon the constitutionality of and should be subject to like punishment, an act of Congress providing for the full and

, pains, and penalties, and to none other, any equal enjoyment by every race equally, of law, etc., to the contrary notwithstanding. the accommodations, advantages, and faciliIt was supposed that the eradication of ties of theaters and public conveyances, and slavery and involuntary servitude of every other places of public amusement; and in form and description required that the slave which the court also considered the scope should be made a citizen and placed on an and effect of the 13th Amendment. In that entire equality before the law with the white case the court, speaking by Mr. Justice citizen, and, therefore, that Congress had Bradley,—who, as we have seen, delivered the power, under the amendment, to declare the judgment in the case just cited,—said: and effectuate these objects.

Con- “By its own unaided force and effect it abolceding this to be true (which I think it is), ished slavery and established universal freeCongress then had the right to go further dom. Still, legislation may be necessary and to enforce its declaration by passing and proper to meet all the various cases laws for the prosecution and punishment of and circumstances to be affected by it, and those who should deprive or attempt to de- to prescribe proper modes of redress for its prive any person of the rights thus con-violation in letter or spirit. And such leg. ferred upon them. Without having this islation may be primary and direct in its power, Congress could not enforce the character; for the Amendment is not a mere amendment. It cannot be doubted, there prohibition of state laws establishing or upfore, that Congress had the power to make holding slavery, but an absolute declaration it a penal offense to conspire to deprire a that slavery or involuntary servitude shall person of, or to hinder him in, the exercise not exist in any part of the United States. and enjoyment of the rights and privileges It is true that slavery cannot exist without conferred by the 13th Amendment and the law, any more than property in lands and laws thus passed in pursuance thereof. But goods can exist without law; and, therefore, this power does not authorize Congress to the 13th Amendment may be regarded as pass laws for the punishment of ordinary nullifying all state laws which establish or crimes and offenses against persons of the uphold slavery. But it has a reflex characcolored race or any other race. That belongs ter also establishing and decreeing universal to the state government alone. All ordinary civil and political freedom throughout the murders, robberies, assaults, thefts and of United States; and it is assumed that the fenses whatsoever are cognizable only in the power vested in Congress to enforce the artistate courts, unless, indeed, the state should cle by appropriate legislation clothes Condeny to the class of persons referred to the gress with power to pass all laws necessary equal protection of the laws.

To il- and proper for abolishing all badges and incilustrate: If in a community or neighborhood dents of slavery in the United States. composed principally of whites, a citizen of The long existence of African slavery in African descent, or of the Indian race, not this country gave us very distinct notions within the exception of the Amendment, of what it was and what were its necessary should propose to lease and cultivate a farm, incidents. Compulsory service of the slave and a combination should be formed to ex- for the benefit of the master, restraint of pel him and prevent him from the accom- his movements except by the master's will, plishment of his purpose on account of his disability to hold property, to make conrace or color, it cannot be doubted that this tracts, to have a standing in court, to be a would be a case within the power of Cm- witness against a white person, and such gress to remedy and redress. It would be like burdens and incapacities, were the ina case of interference with that person's separable incidents of the institution. Seexercise of his equal rights as a citizen be- verer punishments for crimes were imposed cause of his race. But if that person should on the slave than on free persons guilty of be injured in his person or property by any

the same offenses.

We must not wrongdoer for the mere felonious or wrong- forget that the province and scope of the ful purpose of malice, revenge, hatred, or 13th and 14th Amendments are different; gain, without any design to interfere with the former simply abolished slavery; the his rights of citizenship or equality before latter prohibited the states from abridging the laws, as being a person of a different the privileges or immunities of citizens of race and color from the white race, it would the United States, by depriving them of be an ordinary crime, punishable by the life, liberty, or property without due procstate laws only."

ess of law, and from denying to any the This was followed by the Civil Rights I equal protection of the laws. The Amend

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